A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Saturday, 22 December 2012

Annabel Egan successfully defended her doctoral thesis yesterday on
'Constructive Engagement and Human
Rights: The Case of EU Policy Towards China'. The external examiner was Prof. Jan Wouters, of the Catholic University of Leuven. The internal examiner was Prof. Ray Murphy, who is acting director of the Irish Centre for Human Rights. Congratulations, Annabel.

The United Nations General Assembly
adopted its fourth resolution calling for a moratorium on the death penalty on
20 December, by a vote of 111 votes in favour, with 41 votes against and 34
abstentions.

The resolution was first presented in
2007, then again in 2008, and subsequently on alternative years. The results
show a consistent increase in support for the resolution.

2007 2008 2009 2012

In favour 104 106 109 111

Opposed 54 46 41 41

Abstain 29 34 35 34

We get another picture by looking at
this in terms of the percentage of the total number of votes:

2007 2008 2009 2012

In favour 55.6 57.0 58.9 59.7

Opposed 28.8 24.7 22.2 22.0

Abstain 15.5 18.3 18.9 18.3

The ranks of the opponents have
dwindled, in five years, from 54 to 41, which is a rate of 2.6 per year.If the trend continues, they will be at 0 in 15.8
years, just in time for the 2028 resolution.

Attempts to adopt such a resolution in
the 1990s, in 1994 and 1994, were unsuccessful. This shows how this debate
has progressed over the years.

Thursday, 20 December 2012

I spent three days this week in Bangkok
on a mission organised by the Office of the High Commissioner for Human Rights
in order to explore issues of death penalty reform in Thailand and elsewhere in
the region. My meetings involved several very senior government officials as
well as NGO activists and academics. Before my departure, I delivered a lecture
to post-graduate students at Thammasat University. It had been hoped that I
would also be able to visit Singapore, but the trip did not take place and
instead I had a two-hour skype meeting with several activists in that country
who are working on reform of the death penalty.

Basically, the message is one of good
news. Until about 2003, Thailand was regularly executing 8 to 10 people a year,
with a focus on drug offences. From 2004 until 2009 there were no executions,
but that year two convicted drug criminals were put to death. Since then,
nothing.

Pol. Col. Dr. Naras Savestanan, who is Director General of the Department of Rights and Liberties Protection of Thailand's Ministry of Justice.

On Tuesday, I met with Wanchai
Rujjanawong, who is Director-General of the International Affairs Department of
the Office of the Attorney General. He assured me that the last execution in
Thailand had taken place. Although he did not expect any legislative reform, he
said that by 2019 we would be able to count Thailand as de facto abolitionist
under the principle that a state that has not actually conducted an execution
for ten years is deemed to have abolished the death penalty in fact.

I asked him if this was in writing
anywhere, and he said that it was not. But he said ‘you can quote me’. And that
is what I am doing.

Later that day I met the Permanent
Secretary of the Ministry of Justice, Dr. Kittipong Kittayarak, as well as the
Chair of the National Human Rights Commission and the Director General of the
Department of Rights and Liberties Protection of the Ministry of Justice.
Nothing they said suggested that Wanchai Rujjanawong had misread the situation.

My conclusion is that Thailand is now in
a quite determined and intentional moratorium, although it is not yet prepared
to declare so officially. It would be a step forward, I think, if they were
prepared to state this and I suppose they will do so when they are ready.

There is a tendency when we talk about
the global situation with respect to capital punishment to reduce this to
simple numbers and a comparison of ‘abolitionist’ and ‘retentionist’ states.
But among the dwindling number of states that still use the death penalty,
there is huge variation in conduct. In many countries, the same progressive
trend that we see in those states that have formally abolished capital
punishment can be discerned.

It seems that the death penalty is
disappearing with more of a whimper than with a bang.

Tuesday, 18 December 2012

In the second prosecution to reach the judgment stage, a
three-judge Trial Chamber of the International Criminal Court has just
acquitted Mathieu Ngudjolo of war crimes and crimes against humanity.

The judgment is straightforward and entirely accessible
to those without legal training: the three judges didn’t believe many of the
key witnesses called by the prosecution.

Most experienced lawyers will acknowledge that a
unanimous acquittal rooted in the lack of credibility of the prosecution
witnesses is relatively impervious to appeal. Although appeals are more or less
de rigueur at the international criminal tribunals, the Prosecutor might be
wise to decide to devote her precious resources to other pressing priorities
rather than try to contest today’s findings by the Trial Chamber. She might
decide quickly, and give Ngudjolo enough time to go home for Christmas.

Those who cherish justice should always welcome an
acquittal, in the sense that it demonstrates a functional system where the
presumption of innocence is applied genuinely. It hardly needs to be said that
an acquittal in no way indicates that the crime was not committed, merely that
the Prosecutor went after the wrong man.

But as for the health of the institution, there is
something troublesome about an Office of the Prosecutor with a batting average
at trial of only 50%. To an extent, this might be written off as bad luck, were
it not for its other failed efforts. The Ngudjolo case had passed the
confirmation hearing stage, which is a preliminary type of hearing designed to
eliminate cases where even substantial grounds for a conviction cannot be
determined. But the Prosecutor has also stumbled in 4 of the 14 cases to get to
the confirmation hearing stage. So the batting average could also be taken as 5
out of 14, which is not impressive, and which fails to take into account the
fact that several of the 10 where ‘substantial grounds’ were determined have
not yet reached the trial stage.

The Ngudjolo prosecution failed the ‘reasonable doubt’
test, but in a rather dramatic way, with the dismissal of the credibility of
the testimony of several key prosecution witnesses rather than, as is the
situation in where there is a close call, of a difficulty or ambiguity in the
interpretation of testimony where the evidence is otherwise credible. It is the
difference between saying ‘It was dark, and we are not convinced that the
witness was able to identify clearly the defendant’ and ‘We think the defendant
is not believable’. The Prosecutor’s witnesses are in the second category, according
to the Trial Chamber.

In the ‘summary’ that was read out in Court today, the
president judge, Bruno Cotte, made the point that the judgment means that ‘to
declare that an accused is not guilty does not necessarily mean that the
Chamber concludes he is innocent’. This seems a bit of a gratuitous statement,
especially in light of the fact that its verdict is founded on the lack of
credibility of the witnesses.

The judgment rests on an assessment of the facts, and
while this is not meant to be a criticism of it at all, there is little of
substantial legal interest in the findings of the Trial Chamber. It is more
like the verdict of a jury, albeit a reasoned one, than an assessment that
rests upon a controversial assessment of legal issues.

Where we get the law is in Judge Van den Wyngaert’s
fascinating separate opinion. She uses the occasion to express her views upon
the modes of participation in the Rome Statute. Her decision largely endorses
the views expressed by Judge Fulford in his separate opinion in the Lubanga
case earlier this year. Judge Van den Wyngaert rejects the importation of what
is known as the theory of indirect co-perpetration. She insists that the Rome
Statute contains a codification of the forms of participation and that it is
simply not appropriate to enlarge or modify this as if the text itself did not
really exist.

Some observers were perhaps tempted to dismiss Judge Fulford’s separate
opinion as a rear-guard attempt of a common-law trained jurist. No longer. With the
addition of Judge Van den Wyngaert’s eloquent voice, this becomes a harder
contention. She is Belgian, and was trained in a system based upon continental
theories of participation. Moreover, she comes with the immense credibility of
an academic who has been specialised in international criminal law throughout
her long and distinguished career.

This past weekend, I was in Beijing participating in the
launch seminar of a major project entitled ‘Judicial Restraints on Application
of the Death Penalty in China, under the auspices of the College for Criminal
law Science of Beijing Normal University. Those in attendance were some of the
most senior academics in the country in the field of criminal justice, judges
from courts around the country and other professionals from the criminal
justice system. I was honoured to be the only non-Chinese participant in the
meeting.

Over two days, the conference discussed a range of
measures aimed at significantly reducing the use of capital punishment in
China. Although the purpose of the project is not to campaign for abolition of
the death penalty, many speakers made the point that this is the ultimate
objective and that judicial restraint is one means of achieving it.

Speakers canvassed a range of techniques that could be
used, including stricter evidentiary rules and a range of procedural measures.
There was a recognition that such initiatives need to go on regardless of
whether the applicable legislation in China is actually changed.

Speakers also expressed the need to have more precise
information about the use of capital punishment. That total number of persons
executed remains an official secret. However, after this meeting and many other
encounters with experts in the Chinese criminal justice system, I feel
confident in making a few very educated guesses. In the past year, China has
probably executed about 3,000 people. This represents a decline of more than
50% from the number only five years ago. The vast majority of these executions
are for homicide in one form or another, although China also uses the death
penalty for a range of non-violent crimes including drug trafficking and
corruption.

After more than a decade of participation in various
conferences on capital punishment in China, I found this recent meeting to be
the most encouraging event of all. Often, the sessions have a confrontational
tone to them, with European experts lecturing Chinese colleagues, who
inevitably feel defensive. But the recent meeting was an entirely Chinese
affair, and I sat there quietly like a fly on the wall. It was a sincere and
very productive exchange amongst the most senior Chinese experts in criminal
justice about how to make dramatic reductions in the rate of execution.

On more than one occasion, speakers noted that the high
rate of execution was an embarrassment to China at the international level. I
have never before heard such candid comments. There seems to be a growing
recognition in countries like China, where the death penalty is still retained,
that the debate about capital punishment is over and that they are on the wrong
side of history.

The project is led by the very dynamic dean of the
College for Criminal Law Science of Beijing Normal University.

I’ve moved on from Beijing to Bangkok, where I am
participating in a series of seminars on capital punishment in Thailand and in
the region, including Singapore. A decade ago, Thailand was executing an
average of 8 people per year, but since 2004 it has executed only 2 people.
Singapore has also dropped dramatically in its use of the death penalty from
very high levels more than a decade ago. The obsession in this part of the
world is with the use of capital punishment for drug crimes.

Thursday, 13 December 2012

John Barrett writes wonderful pieces about Robert Jackson, the prosecutor at Nuremberg, and about the Nuremberg trial more generally. He circulates them by e-mail, and invites readers to share them, and that is what I am doing:

David Warren Brubeck was born in Concord,
California, on December 6, 1920. His father became a California cattle
rancher. His mother was a pianist and music teacher. Not surprisingly,
David’s older brothers and he became horsemen and
musicians. By his late teens, David was playing piano professionally.

After graduating from the College of the Pacific
in 1942, Brubeck enlisted in the U.S. Army. For two years, Private
Brubeck played in an Army band in California. In 1944, he was trained
to be a rifleman. Following D-Day, he was sent
to northern France for combat service.

Luck then intervened. After hearing Brubeck
playing piano with a Red Cross traveling show, his commanding officer
ordered that he not be sent into combat. Instead, Brubeck and a few
other soldiers, most of them decorated, formed a swing
band that was trucked into combat areas to entertain troops. Called
“The Wolf Pack,” it was the first racially-integrated band in the U.S.
Army.

After Germany’s surrender in May 1945, Brubeck
and his band mates were stationed in Nuremberg as part of the occupation
army. They soon discovered the city’s Opera House and made it their
rehearsal space.

On July 1, 1945, The Wolf Pack played in a United
Service Organizations (“USO”) show that reopened Nuremberg’s Opera
House. Later that summer and through the fall, Brubeck and his fellow
soldier-band mates served, roamed, rehearsed
and performed, including in USO shows featuring sixteen members of the
Radio City Music Hall Rockettes, in Allied-occupied Germany.

The Wolf Pack members were well aware of the IMT
proceedings that began in November 1945 in Nuremberg’s Palace of
Justice. Brubeck did not attend the trial but he interacted with U.S.,
U.S.S.R., U.K. and French personnel who were parts
of it, including at meals in a large mess hall that they shared.

In January 1946, Brubeck returned to the United States and was honorably discharged from the Army.

He then became, well, Dave Brubeck. He lived a
long, productive life of musical genius and international acclaim.
Although his time ended physically on December 5, 2012, Dave Brubeck
lives on in his compositions, his recordings and,
for those (I’m one) who got to see him play, in very special
memories. (For leading newspaper obituaries, click
here and
here.)

* * *

Across the years after 1945, Dave Brubeck never
forgot World War II or Nuremberg. In winter 2004, for example, he
recorded a musical autobiography, the leading songs of his war years.
The album, Private Brubeck Remembers, contains
twenty-four piano solos and, in CD editions with a bonus disk, a
lengthy interview of Brubeck by Walter Cronkite. In the interview, they
share memories of 1945 Nuremberg, where Cronkite also lived as he
reported on the IMT trial for United Press.

Around the time that he recorded Private Brubeck Remembers,
Dave Brubeck discussed Nuremberg with a Nuremberg prosecutor. In a St.
Louis, Missouri, restaurant following a performance, Brubeck met and
had a conversation with Whitney
R. Harris, former U.S. assistant prosecutor before the IMT. Brubeck
and Harris were hosted that night by their mutual friend Georgia
Frontiere—she made it a point to connect the men, two giants with
Nuremberg in common.

In 2005, the City of Nuremberg, noting Dave
Brubeck’s dedication throughout his musical career to toleration, peace
and human rights and his personal history in Nuremberg, invited him to
participate in the City’s commemoration of the
60th anniversary of the start of the IMT trial. Brubeck
accepted—he and his band mates added Nuremberg on the front end of a
concert tour that also took them to Austria, Switzerland, Spain and
Poland.

On November 16, 2005, the Dave Brubeck Quartet played in Nuremberg’s
Schauspielhaus (playhouse). This modern venue is part of the Staatstheater (National Theater). This complex includes the historic Opera House—for a guide book view,
click here. It is the same Opera House that The Wolf Pack helped to
reopen to music, and that Justice Jackson then wisely declined to make a
courtroom, in July 1945.

During Brubeck’s November 2005 visit to
Nuremberg, the Lord Mayor thanked him “for liberating our City.” In
fact, with his music, he did. And he liberated so much more.

* * *

A few more links—

For video excerpts from a 2009 Dave Brubeck interview about his World War II service and his time in Nuremberg,
click here. (Hat tip: Greg Peterson.);

For Dave Brubeck explaining, in the same interview, what inspired him to compose his signature tune “Take Five,”
click here; and

Administrative details: I send Jackson List notes, which
do not display recipient identities or email
addresses, to readers who are interested in Justice Robert H. Jackson,
the Supreme Court, Nuremberg and related topics. To read archived
copies of some past Jackson List posts,
click here. If you received this note indirectly and wish to join the Jackson List, send a “subscribe” note to
barrettj@stjohns.edu. If you wish to leave the Jackson List, just send an “unsubscribe” note.

Monday, 10 December 2012

Sunday, 9 December 2012

See the Al Jazeera documentary on the
ongoing persecution of the Rohingya minority in Burma. The documentary will be broadcast the evening of 10 December, but it should be available on the internet for the next four days. Already, it has been fiercely
attacked by the Burmese government.

Here is the announcement from the Al
Jazeera website:

Earlier this year a Buddhist woman was
raped and murdered in western Myanmar. The authorities charged three Muslim
men.

A week later, 10 Muslims were murdered
in a revenge attack. What happened next was hidden from the outside world.

Bloodshed pitted Buddhists against
minority Rohingya Muslims. Many Rohingya fled their homes, which were burned
down in what they said was a deliberate attempt by the predominantly Buddhist
government to drive them out of the country.

"They were shooting and we were
also fighting. The fields were filled with bodies and soaked with blood,"
says Mohammed Islam, who fled with his family to Bangladesh.

There are 400,000 Rohingya languishing
in Bangladesh. For more than three decades, waves of refugees have fled
Myanmar. But the government of Bangladesh considers the Rohingya to be illegal
immigrants, as does the government of Myanmar. They have no legal rights and
nowhere to go.

This is a story of a people fleeing the
land where they were born, of a people deprived of citizenship in their
homeland. It is the story of the Rohingya of western Myanmar, whose very
existence as a people is denied.

Professor William Schabas, the former
president of the International Association of Genocide Scholars, says:
"When you see measures preventing births, trying to deny the identity of
the people, hoping to see that they really are eventually, that they no longer
exist; denying their history, denying the legitimacy of their right to live
where they live, these are all warning signs that mean it's not frivolous to
envisage the use of the term genocide."

Kenneth Roth, the director of Human
Rights Watch, has been the victim of a very nasty attack by anti-Muslim
extremists who charge that he is ‘dancing around genocide’ by refusing to
condemn Iran and its president for incitement to genocide. David Feith savages
Ken Roth in the Wall Street Journal in an article that speaks of ‘a bitter
behind-the-scenes battle [within Human Rights Watch] over Iran's calls to
annihilate Israel'.

(David Feith shouldn’t be confused with
Douglas Feith, who was the under-secretary of state in the first George W. Bush
administration, a sabre-rattler for war with Iran, an as yet unpunished director of the Abu Ghraib torture prison, and a neo-conservative
ideologist who thinks ‘terrorists’ aren’t entitled to protection of the Geneva
Conventions. David is the son of Douglas.)

Ken Roth is correct, and he is very
wisely rejecting such demagogic appeals. Iran and its president have said many
outrageous things. With respect to Israel, the common denominator of
Ahmedinijad’s comments on the subject, when read in their context and bearing
in mind the vagaries of translation, certainly amount to a call for the elimination
or destruction of the state of Israel. But this is not at all the same thing as
calling for the extermination of the people of Israel, or the Jewish population
of Israel. A reasonable reading of Ahmedinijad's statements cannot support such a conclusion.

There is nothing unprecedented about
calling for the destruction or elimination of a State. Decades ago, Cold
Warriors wanted to destroy the Soviet Union and Yugoslavia (they succeeded). In
Ireland, many republicans want to destroy the ‘state’ of Northern Ireland.
Presumably advocates of the ‘one state solution’ for the Israel-Palestine
conflict are also calling for the annihilation of Israel, in the sense that the
result will be a secular state with a potentially Arab majority. These are
political views, and whether we disagree with them or not, they have a right to
be expressed.

Those who charge Ahmedinijad with
inciting genocide, including Feith, generally muddle their claim with
provocative references to Iran’s possible nuclear capacity. They equate the
alleged efforts of Iran to obtain nuclear weapons with an intent to perpetrate
genocide against Jews in Israel.

This is a problematic charge for a
couple of reasons. First, were Iran to get nuclear weapons, it would not be the
first in the region to do so. It very arguably has a claim to require them for
defensive purposes, given that its enemies already have nuclear weapons. Why won't Feith call for nuclear disarmament in the Middle East region as a means
to prevent genocide?

Second, it doesn’t require very much
intelligence to understand that Iran is unlikely to be able to build a nuclear
weapon that can distinguish between Jews and Arabs on the territories of Israel
and Palestine. Use of nuclear weapons there would be likely to kill as many
Palestinians as it would Jewish Israelis. Does any sane, rational person really
think that mass destruction of the inhabitants of Israel and Palestine using an indiscriminate weapon can be
Iran’s objective?

The attacks on Ken Roth and Human Rights
Watch feed off those who are genuinely concerned about the possibility of
genocide taking place somewhere in the world. Iran gets presented as yet
another example of a mass atrocity waiting to happen, another Rwanda. That is a
huge distortion that is pumped up by right-wing ideologues with an anti-Muslim
agenda who think that the two greatest genocidal threats in the world just
happen to be Muslim states in the Middle East that don’t happen to like Israel,
namely Sudan and Iran. These people don’t get nearly as excited about threats
of mass atrocity in places like Burma and Sri Lanka.

Some amateurish international lawyers
are also engaged in the anti-Ahmedinijad campaign. They invoke article 3(c) of
the 1948 Convention for the Prevention and Punishment of the Crime of Genocide
and link it to article 9 of the same treaty in a proposal to bring the case
before the International Court of Justice. Politicians have been sucked into
endorsing this notion. In the last American election, Mitt Romney wasn’t smart
enough to see the flaws in such a position, and lent his voice to the campaign. Kenneth Rudd in Australia did the same
thing a few years earlier. Perhaps this got them a few votes (though not enough) which
was no doubt the purpose of the preposterous exercise.

Article 3(c) makes punishable ‘direct
and public incitement to commit genocide’. It is one of the so-called inchoate
acts of genocide, in that it does not require that anyone is actually incited
or that genocide itself actually take place for the incitement crime to be
perpetrated. The reason for the words ‘direct and public’ is to distinguish
this from incitement in general, which would be a form of complicity in
genocide if there was evidence that people were actually incited and that they
actually carried out genocide.

There have been some convictions for
‘direct and public incitement to commit genocide’ at the International Criminal
Tribunal for Rwanda, but they present a confused legal message because there is
no doubt that in Rwanda individuals were actually incited and genocide took
place. I know of no example anywhere where someone has been charged and convicted of
‘direct and public incitement to commit genocide’ in the absence of evidence
that people were incited and that those people carried out genocide.

When they implement the provisions of
the Genocide Convention (and the Rome Statute, which is to the same effect),
most states indicate an understanding that ‘direct and public incitement’ is
not a crime on nearly the same level or of the same gravity as genocide itself.
For example, in the United States, the so-called Proxmire Act provides a fine
of $500,000 and a maximum sentence of five years for the crime of direct and
public incitement. And that is assuming it would survive constitutional
scrutiny under the First Amendment were a prosecution ever to take place.

It should be pretty obvious that
cavalier charges of ‘direct and public incitement to commit genocide’ have the
potential to encroach upon freedom of expression. Indeed, isn’t that the real
purpose behind the attacks on Ahmedinijad and, for that matter, Ken Roth and
Human Rights Watch by Feith and the anti-Muslim chorus?

They want Ahmedinijad to acknowledge
Israel as a State, and to back off its alleged efforts to obtain nuclear
weapons. Incidentally, just as Ahmedinijad wants to see the end of Israel as a state, they
too want to see the destruction and annihilation of the ‘Islamic Republic of
Iran’. And they also want to muzzle Ken Roth and Human Rights Watch because of
the courageous positions they have taken on human rights violations perpetrated
by Israel and its armed forces against the people of Palestine.

Saturday, 8 December 2012

Noémie Turgis successfully completed her doctoral defence at the Université de Paris I (Panthéon Sorbonne) on 6 December. The thesis was entitled Transitional Justice and International Law, and the jury gave it the highest accolade possible: mention très honorable avec félicitations du jury, and recommendations for publication and for a prize.From left: Prof. Vincent Chetail (Institut des Hautes Études Internationales et du
Développement), myself, Prof. Denis Simon (Paris I), Dr. Turgis, Prof. Xavier Philippe (Paul Cézanne Aix-
Marseille III) and Prof. Jean-Marc Sorel, who was the supervisor.Professor Sorel is not wearing his gown, having passed it to Noémie after she had successfully finished the defence.This is the doctoral defence à la française, which is held publicly and is generally attended by fellow doctoral students, friends and family, as was the case here. The defence takes several hours - in this case, about three - and includes substantial statements or speeches by the members of the jury. Although it is generally a foregone conclusion that the thesis will be accepted, the important issue concerns the conclusion of the jury and the recommendations, which can have a decisive effect on the candidate's career.Traditionally, when it is all over the candidate hosts the members of the jury and the guests at a reception that involves good food and champagne, a nice tradition that universities in other countries should encourage.

Friday, 7 December 2012

There are already 126 States that have ratified the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. This important human rights treaty entered into force in 2008.This week, the United States Senate rejected a motion to approve ratification of the treaty by a vote of 61 in favour and 38 opposed. Under the United States Constitution, the Senate must authorize ratification of international treaties by a two-thirds vote. This weeks initiative fell short of the 66 required affirmative votes by 5.The opposition to the Convention was led, predictably, by right-wing republican senators who are still pandering to the Tea Party types. There are some fine accounts of this in the Washington Post and the New York Times. These writers express far better than I can the outrage that we should all share about the Senate vote.Erstwhile presidential candidate Rick Santorum mobilized opposition by focussing on the provision in the treaty that recognizes the primacy of the best interests of children when they are concerned. Apparently the Tea Party crowd fear that such a principle will threaten the right of parents to ‘home school’ their children, which is something that seems to be a peculiarly American obsession predicated on the perverse consequences that result when children are educated under the authority of the state.There is nothing new here. Back in the 1950s, the Republican administration that took office in 1953 proclaimed its indifference to international human rights law. The Senate blocked ratification of the 1948 Genocide Convention. That Convention was not ratified until the late 1980s. Other important human rights treaties remain unratified by the United States, including the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights.Students who have studied human rights law with me will know the importance that I attach to the right to equality and to non-discrimination. It is set out at the beginning of the Universal Declaration of Human Rights, in article 2: ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Disability is not listed as a prohibited ground of discrimination. In my recent research on the drafting history of the Universal Declaration of Human Rights, I did not find any evidence that disability was even considered at the time.But this is what is so fascinating about the right to equality. Perhaps more than other rights, it evolves and develops as our collective understanding is enriched. Those who drafted article 2 of the Universal Declaration intended this. That is why the words ‘without distinction of any kind, such as…’ appear before the enumeration of prohibited grounds.The most compelling evidence that disability belongs, by implication, in article 2, and that disability now sits very much at the centre of the right to equality, is found in the Convention and its widespread acceptance. In this respect, the rejection this week by the United States Senate is a bizarre anomaly. Under the circumstances, including clear indications that the majority of Americans support the Convention and its goals, this recent development can hardly threaten the claim that discrimination based upon disability is prohibited by international human rights law and more specifically by article 2 of the Universal Declaration.The Senate vote this week is grotesquely inconsistent with the view that the United States communicates internationally about the right to equality, both in a symbolic sense – manifested in the election and the re-election of President Obama – and in the positions it takes in bodies like the United Nations. Here is a relevant excerpt from the report submitted by the United States to the United Nations Human Rights Council in 2010 as part of the Universal Periodic Review process:

III.2 Fairness and equality

29. The United States has always been a multi-racial, multi-ethnic, multi-religious society. Although we have made great strides, work remains to meet our goal of ensuring equality before the law for all. Thirty years ago, the idea of having an African-American president would not have seemed possible; today it is our reality. Our Attorney General, the nation’s top law enforcement officer, is also African-American. Three of the last four Secretaries of State have been women, and two of the last three have been African-American. We have recently appointed our first Hispanic Supreme Court Justice, as well as several LGBT individuals to senior positions in the Executive Branch. And while individual stories do not prove the absence of enduring challenges, they demonstrate the presence of possibilities.

30. In 1947, W.E.B. DuBois testified before the UN General Assembly on the continued pervasive discrimination against African Americans in the United States. In the ensuing decades the U.S. civil rights movement emerged as a quintessential example of citizens using principles of non-violence, law, protest, and public debate to hold their government accountable and to demand that it deliver on their right to equal and fair treatment. The movement led to critical new laws prohibiting discrimination and seeking to ensure equal opportunity for all individuals. The progress in the decades since is a source of pride to our government and to our people. Indeed, our nationís struggle to banish the legacy of slavery and our long and continuing journey toward racial equality have become the central and emblematic narrative in our quest for a fair and just society that reflects the equality of all.

31. The United States aspires to foster a society in which, as Dr. Martin Luther King, Jr. put it, the success of our children is determined by the ‘content of their character’. We are not satisfied with a situation where the unemployment rate for African Americans is 15.8%, for Hispanics 12.4%, and for whites 8.8%, as it was in February 2010. We are not satisfied that a person with disabilities is only one fourth as likely to be employed as a person without disabilities. We are not satisfied when fewer than half of African-American and Hispanic families own homes while three quarters of white families do. We are not satisfied that whites are twice as likely as Native Americans to have a college degree. The United States continues to address such disparities by working to ensure that equal opportunity is not only guaranteed in law but experienced in fact by all Americans.

32. In addition to our continuing quest to achieve fairness and equality for racial and ethnic minorities across our society, we wish to call attention to the following groups and issues.

Fairness, equality, and persons with disabilities

33. United States law and practice provide broad and effective protections against, and remedies for, disability-based discrimination. The most notable of these is the Americans with Disabilities Act of 1990 (ADA), the first national civil rights legislation in the world to unequivocally prohibit discrimination against persons with disabilities, which was amended in 2008 to ensure broader protections. The intent of these laws is to prohibit discrimination on the basis of disability and remove barriers to the full and equal inclusion of people with disabilities in U.S. society. These laws cover areas of life including education, health care, transportation, housing, employment, technology, information and communication, the judicial system, and political participation. To ensure implementation of these laws, a variety of technical assistance and remedies have been supported with federal funds. For example, training has been provided to the public and private sectors on implementation of the ADA; parent training information centers empower families to understand and claim their rights; and federally funded centers for independent living support the empowerment of individuals with disabilities to live where and with whom they choose in their communities. The Department of Justice and other federal departments and agencies have the authority to enforce these laws and, in this regard, receive complaints and utilize mediation and litigation as appropriate. On July 30, 2009, the United States signed the UN Convention on the Rights of Persons with Disabilities and is pursuing the necessary steps toward ratification, which the Administration strongly supports. Upon the 20th anniversary of the ADA, President Obama further demonstrated the nation’s commitment to continued vigilance and improvement by announcing new regulations that increase accessibility in a variety of contexts and commit the federal government to hiring more persons with disabilities. Although we recognize that discrimination and access problems persist, which we are actively striving to address, the substantive equality of persons with disabilities in the United States has improved enormously in the past few decades.,.

Fairness and equality in education

47. The United States is committed to providing equal educational opportunities to all children, regardless of their individual circumstances, race, national origin, ethnicity, gender, or disability…

48. Additionally, the Departments of Justice and Education enforce numerous laws, including the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Patsy T. Mink Equal Opportunity in Education Act of 1972 (Title IX), and the Rehabilitation Act of 1973, that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age with regard to education. In this capacity, the Justice Department is a party to more than 200 court cases addressing equal opportunities for students, and is involved in numerous out-of-court investigations, many of which have led to settlement agreements. The Department of Education investigates and resolves civil rights complaints filed by individuals, resolving 6,150 such complaints in the most recent fiscal year, and initiates compliance reviews where information suggests widespread discrimination. The Individuals with Disabilities Education Act (IDEA) requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs...

Senator John Kerry apparently said ‘we’ll be back soon’, with a renewed attempt to obtain the required votes in the Senate. The composition of the Senate will change in January in accordance with November’s rejection of the conservative Republican vision of America. But the fact that 38 Senators could reject such an initiative is yet another scary reminder of the bizarre ideas that seem to prevail among a significant section of the population in the United States and that the rest of the world finds so hard to understand.Thanks to David Scheffer.

Sunday, 2 December 2012

In mid-November, delegates to the
Assembly of States Parties were told how the Court would conclude its second
trial with a judgment before year-end (see the Report on the Activities of the
Court, ICC-ASP/11/21, para. 10). This is the case of Katanga and Ngudjolo,
dealing with a massacre that took place in the Democratic Republic of the
Congo.

But the Assembly had not anticipated a
ruling issued on 21 November that severs the case into two, and may have as a
consequence the prolongation of the Katanga case by perhaps a year or even
more. Judgment in Ngudjolo will be delivered on 18 December.

In a ruling based upon Regulation 55,
the Trial Chamber decided to recharacterise the mode of liability upon which
Katanga’s trial was based and to proceed on the basis of a different provision
of the Rome Statute.

Nothing like this can take place at the
ad hoc tribunals, because there is no equivalent to Regulation 55.

Regulation 55 Authority of the Chamber to modify the legal characterisation of facts

1. In its decision under article 74, the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges. 2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change. 3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall: (a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1 (b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).

Most
criminal lawyers in national systems will also be astonished that this can
happen (well, perhaps it is possible in places like Iran, or Zimbabwe). The
Regulations of the Court are crafted by the judges and then tacitly confirmed
by the Assembly of States Parties, which may object if it is not content but
which has not done so. Although the conformity of Regulation 55 with the Rome
Statute itself has already been confirmed by the very judges who adopted it, it
is not the idea of reframing the charges but rather the consistency of its
interpretation with fair trial principles that is at the heart of the decision.

Judge Van den Wyngaert issued a very
strong dissenting opinion that most persuasively protests the decision of her
two colleagues to recast the legal debate because of the unfairness it creates
for the defendant. The majority decision and the dissent represent one of the
most profound debates about fairness in the Court’s proceedings to have taken
place to date.

Reading between the lines, one may see
that the majority judges concur that the mode of liability upon which both
prosecutor and defendant have based their case, and on which evidence was led,
is likely to lead to an acquittal. So they have found another mode of liability
that they find more suitable and that will, presumably, result in a conviction.
Of course, the parties can insist on making new submissions, and even on
calling new evidence.

What is so astonishing about the
decision is that it takes place not at the close of the prosecution’s case, or
even in the midst of the defendant’s case, but more than a year after the
evidentiary phase of the trial was completed and six months after the judges
had received the final submissions from the parties.

Critics of the judgment will be tempted
to point out that the two majority judges of the Trial Chamber, both of whom
have already passed the expiration of their terms of office, have now extended
their own employment contracts with the Court and, in the case of one of them,
increased the pension entitlement. Two recently elected judges will have to
wait still longer before taking office, and will have their own terms of office
reduced accordingly.

As Judge Van den Wyngaert notes in her
eloquent and compelling dissent, part of the unfairness is due to the fact that
the recharacterisation of the liability of Katanga is based in part upon his
own testimony. Katanga took the stand in his own defence on the belief that he
was to answer upon one form of liability, but now finds himself charged based
upon another form of liability that results in part from what he himself said
in Court.

If this decision is allowed to stand, it
will have a very significant impact upon defence strategies in future trials.
Defence counsel will have to advise their clients that should they choose to testify,
the evidence they give may be used not only in defence to the charges but also
in what amounts to a new trial, on a new charge. For the Prosecutor,
cross-examination of a defendant who chooses to testify will have the potential
to become a fishing expedition where new charges and forms of liability will be
explored. The notion of ‘relevance’ may take on a whole new meaning.

For the two majority judges, who come
from a culture of inquisitorial proceedings, the idea of reframing a mode of
liability in this way is perhaps not as unusual as it might be for a judge from
a background in adversarial proceedings. They are more comfortable with
procedure where it is the judge rather than the parties who drives the
proceedings. But they may not have taken into account the unfairness that
results when there are adversarial proceedings, like those prescribed by the
Rome Statute, where the scope of the judicial debate is set at the outset of
the trial and where the parties produce evidence pursuant to such an agreed
understanding.

Regulation 55 allows the judges to
intervene and propose changes to the charges, but this is not really that
different from a situation where the prosecutor proposes an amendment to the
charges. It is acceptable – within reasonable bounds – while the trial is
underway, and especially before the defence has played its hand, but it becomes
increasingly intolerable from the standpoint of fairness as the trial advances.

To allow this a year after the trial
itself has concluded was surely not adequately contemplated by the judges when
the adopted Regulation 55 or by the Assembly of States Parties when it
confirmed the Regulations of the Court. Surely many of them believed at the
time that this was something that would take place early in the trial, and in a
manner fully respectful of the rights of the accused. If the majority of the
Trial Chamber thinks this should be possible, it should proceed by proposing an
amendment to the Regulations (which obviously could not apply in a pending
trial in a manner designed to ensure conviction, as seems to be the case with
Katanga) rather than ambush the defendant in this way.

The decision is available in French only
at this point, which may explain why it is not getting the attention it
deserves. But Judge Van den Wyngaert’s dissenting opinion, which is annexed to
the ruling itself, is in English.

The International Institute of Higher Studies in Criminal Sciences celebrated its 40th anniversary on 1 December.
Based in Siracusa, in Sicily, it has played a seminal role in the progressive
development of criminal justice generally, but especially in the areas of human
rights and international criminal law.

With respect to the International
Criminal Court alone, the Institute held 19 international conferences, seminars
and government expert meetings as the Rome Statute was being developed. At an
early stage, delegates to the Preparatory Committee sessions held by the United
Nations discussed what was known as the ‘Siracusa Draft’. During the Rome
Conference itself, two of the three chairmen of the Diplomatic Conference were
members of the Institute’s Board: Giovanni Conso, president of the Conference,
and Cherif Bassiouni, president of the drafting Committee.

Sofia, Antonio and their proud grandfather.

The International Criminal Court is only one of the areas in which the ISISC has made enormous contributions. Since its foundation, the Institute has hosted 513 activities on a huge range of criminal law issues. Every year, it holds an intensive course for Young Penalists. Many who are now judges of international and national tribunals, senior officials, and other distinguished professionals are the graduates of the course for Young Penalists.One cannot speak of the ISISC without
also speaking about the individual who has led the Institute since its
beginnings, in 1972: Professor M. Cherif Bassiouni. At yesterday’s ceremony,
held in the Institute’s glorious new premises in the old Jewish quarter of
ancient Siracusa, prominent Italian jurists and international personalities
paid homage to Prof. Bassiouni’s immense contribution to international law and
justice.

Receiving an original edition of L'Esprit des Lois .

Later in the evening, friends and family
gathered at the Villa Politi for a celebration, both of the Institute’s
anniversary but also of another important date, Cherif’s 75th birthday.
Accompanied on the piano by his six-yearold granddaughter Sofia, we all sang
‘Happy birthday’.

Stephen Rapp, Eduardo Vetere and Giovanni Pasqua, with musicians.

Cherif's colleagues in the Association internationale de droit pénal presented him with a portrait and an original edition of Montesquieu's L'Esprit des lois.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.